28 May 2012

THE STAR: ‘Fatwa on name not binding on NRD’

KUALA LUMPUR: The fatwa that the name of a child's father may not be recorded in the child's birth certificate if the Muslim baby is born within six months of the parents' marriage is not binding on the National Registration Department, a forum here heard.

“The NRD is an administrative body and has no business delving into other matters,” Perlis Mufti Dr Juanda Jaya said at a forum, Ada Apa Pada Nama (What's in a name), organised by Sisters In Islam here yesterday.

The fatwa, made at the third muzakarah (conference) of the Fatwa Committee of the National Council of Islamic Religious Affairs in January 1971, ruled a woman who is illegitimately pregnant is allowed to get married but the man, however, cannot be recognised as the father of the unborn baby, the baby cannot inherit from him, cannot be considered his mahram (close blood relative) and the man cannot be the baby's guardian.

Dr Juanda said the fatwa was not enforceable unless the states concerned gazetted it.

He added that it would be different if the Conference of Rulers ordered the National Fatwa Council to discuss the matter and the fatwa formally endorsed by the rulers.

States that had reportedly gazetted the fatwa are Negri Sembilan (in 2002), Terengganu (2005) and Malacca (2005). The Federal Territory gazetted it in 2001.

Last November, the Terengganu government proposed to allow children born less than six months of their parents' marriage to carry the father's name.

Perlis issued a state fatwa allowing this in 2009.

Dr Juanda questioned a ruling in some states, where a woman wanting to marry must produce her parents' marriage certificate.

He encouraged affected parents to challenge the NRD in court if it refused to record the father's name.

Dr Juanda and Terengganu Syariah Chief Judge Justice Ismail Yahya said a distinction must be drawn between punishing for zina (having sex out of wedlock) and denying a child his nasab (lineage).

When asked whether affected parents from a state where the NRD had refused to record the father's name could get the deed done in Perlis and Terengganu, the two men said “yes”.

Fellow panellist Nizam Bashir, a civil law and syariah law practitioner, said the NRD practice contravenes Articles 5 and 8 of the Federal Constitution, which give a child the right to life, privacy, identity to equal treatment under the law and to non-discrimination.